Economic and Political Significance Isn’t Enough: Properly Limiting the Major Questions Doctrine to “Extraordinary” Cases, by Brianne Gorod, Brian Frazelle, and Alex Rowell
While the “major questions doctrine” developed over a series of important cases, the Supreme Court’s express recognition of the doctrine last Term in West Virginia v. EPA has dramatically raised its profile. Litigants are now identifying all sorts of “major questions” and claiming that the doctrine is triggered by a wide variety of government actions ranging from the EPA’s updates to automobile greenhouse gas standards to the D.C. Bar bringing an ethics complaint against a former federal official.
There’s a common thread running throughout many of the press reports, plaintiffs’ briefs, and even critiques discussing the major questions doctrine: the idea that the doctrine applies whenever an agency action has “vast economic and political significance.” As we argue in an article forthcoming in the Wake Forest Law Review, this significantly overstates the doctrine’s breadth. Indeed, as the Court itself made clear in West Virginia, the doctrine applies only in “extraordinary cases,” and vast economic and political significance is necessary, but not sufficient, to make a regulatory action so “extraordinary” that it triggers the doctrine. Instead, courts must also examine “the history and breadth of the authority that [the agency] has asserted” to determine whether it represents a transformative expansion of the agency’s power unlikely to have been authorized by Congress. Doing so is not only required by West Virginia and the precedent on which it relied, but also helps alleviate the doctrine’s latent tensions with textualism, the original meaning of the Constitution, and the separation of powers.
West Virginia was an important step in the doctrine’s evolution, as its requirement of “clear congressional authorization” went further than previous cases employing major question analysis. But in all the Court’s major questions cases, the practical significance of an agency action has never been sufficient alone to trigger application of the doctrine. For example, in FDA v. Brown and Williamson Tobacco Corp., a key case in the doctrine’s lineage that rejected the FDA’s effort to regulate tobacco, the Court took into account not only the tobacco industry’s importance, but also the novelty of the FDA proposal and its incompatibility with the statutory scheme and other legislation—all of which suggested that Congress had not actually granted the FDA the broad power it claimed.
Synthesizing past major questions cases, West Virginia explained that the problem addressed by these cases is not that of agencies asserting highly consequential power, but rather “asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” As such, the Court spent little time considering the political and economic significance of the EPA’s Clean Power Plan, which it appeared to view as self-evident. Instead, the Court looked further for indicia that the agency was seeking a “transformative expansion” in its authority. Such indicia included what the Court viewed as the novel, “unheralded” nature of the plan, its basis in the “vague language of an ancillary provision,” its tension with the overall regulatory scheme, the agency’s lack of “comparative expertise” to make the judgments required, and Congress’s conspicuous and repeated failure to enact this type of plan itself. Ultimately, the Court found that the EPA’s plan “effected a fundamental revision of the statute, changing it from [one sort of] scheme of . . . regulation into an entirely different kind,” and on this basis the Court applied the major questions doctrine. As we show in our article, similar reasoning animates all of the Court’s major questions cases.
The need to show more than just broad consequences is illustrated by the contrast between two per curiam decisions on federal COVID vaccine policies issued the same day in 2022. In NFIB v. OSHA, the Court invoked the major questions doctrine to effectively halt OSHA’s vaccination-or-testing requirements for large employers, declaring that the requirements were a “significant encroachment” into employees’ lives and “no everyday exercise of federal power.” In doing so, the Court concluded that the requirements were strikingly novel and outside the agency’s “sphere of expertise,” and it bolstered this conclusion by noting Congress’s failure to amend the law to grant this power specifically. In Biden v. Missouri, by contrast, the Court upheld a vaccine mandate for staff at Medicare or Medicaid-funded facilities without applying the doctrine. Dissenting Justices claimed that the rule’s immense scope—covering more than 10 million workers—made it a major questions case. But the majority disagreed, emphasizing that the mandate was not “surprising” but instead consistent with “longstanding practice” and aligned with agency expertise, notwithstanding that it went “further than what the Secretary has done in the past.”
The Court’s decision to require more than great economic and political significance before concluding that a case is sufficiently “extraordinary” to apply the major questions doctrine makes sense because it helps ameliorate the doctrine’s tension with textualism, originalism, and the separation of powers.
As many have recognized, the doctrine is inherently in conflict with textualist principles—a surprising development from a professedly textualist Court. The Court has stressed that individuals should be able to “rely on the law as written” without courts disregarding a statute’s “plain terms based on some extratextual consideration.” But major questions analysis emphasizes these types of considerations at the outset, placing judicial focus on the present-day impact of a regulation and a variety of other post-enactment developments instead of on the statute’s meaning at the time of its enactment. Courts can lessen this conflict by limiting the doctrine (as West Virginia instructs) to truly extraordinary cases in which a breathtaking assertion of agency power, despite its textual plausibility, goes “beyond what Congress could reasonably be understood to have granted.”
The doctrine’s tension with constitutional text and history also cautions against applying it based on practical consequences alone. While the Court has said that “separation of powers principles” support the doctrine (without further elaboration), the original understanding of the Constitution belies any claim that it is abnormal or suspect for Congress to assign important policy decisions to the executive branch, or that Congress must satisfy some heightened standard to make such assignments. Early legislation—“strong evidence of the original meaning of the Constitution”—shows that Congress has never felt obligated “to make major policy decisions itself,” contrary to a presumption underlying the major questions doctrine, but rather has felt free since the Founding to assign such decisions to the executive branch.
Finally, separation of powers concerns themselves suggest that the major questions doctrine should be used only sparingly. While the doctrine is often described as preserving democratic accountability and congressional authority, its imposition of a heightened standard of clarity on certain legislation actually wrests power away from Congress and gives it to an unelected judiciary. This is particularly the case when courts apply the doctrine retroactively to legislation passed well before Congress was put on notice of its new requirements. And applying the doctrine based on economic and political significance alone would dramatically heighten these tensions: it is not always possible for Congress to predict future events requiring agency response or when particular uses of authority will become politically controversial. Searching more carefully for additional factors demonstrating that Congress’s plan is actually being subverted helps to assuage these concerns by keeping courts in the proper role of interpreting the law, not amending it.
It’s certainly likely that the major questions doctrine will play a more prominent role in administrative law in the years to come. But West Virginia and its predecessors do not stand for the proposition that Congress must specifically authorize any agency action that happens to affect millions of Americans, impose significant costs on regulated entities, or spur political controversy. These types of actions are far from “extraordinary”—indeed, they are routine under the laws that our elected branches have enacted. Instead, courts must look for more than just economic and political significance before concluding that the major questions doctrine applies. Doing so not only is required by precedent, but also helps reconcile the doctrine’s tensions with textualism, the Constitution’s original meaning, and the separation of powers.
Brianne Gorod (@briannegorod on Twitter) is the Chief Counsel at the Constitutional Accountability Center. Brian Frazelle is the Senior Appellate Counsel at CAC. Alex Rowell is the Douglas T. Kendall Fellow at CAC.